Reassessing Pre-Assessment

Operators should be prepared for the return of pre-assessment conferences.

By Kristin R. White

On Dec. 1, 2011, the Mine Safety and Health Administration (MSHA) announced it will begin implementing pre-assessment conferencing procedures in January 2012 in an effort to reduce the backlog of future violations before the Federal Mine Safety and Health Review Commission. The backlog of cases pending before the Review Commission has been attributed, in part, to MSHA’s replacement of pre-assessment conferences with post-assessment conferences. With the return of pre-assessment conferences, operators will want to be prepared early in the process in order to hold a successful negotiation.

Prior to March 2009, MSHA regularly conducted pre-assessment conferences with mine operators. That process changed with the issuance of MSHA’s Program Information Bulletin (PIB) No. P09-05, which informed the mining industry that district managers and conference and litigation representatives (CLR) had the discretion to defer conferences until penalties had been proposed and contested. After the PIB was issued, MSHA exercised its “discretion” to postpone conferences on the vast majority of mine operators’ conference requests. Consequently, almost all conferencing now takes place after MSHA has proposed a penalty assessment and the mine operator has formally contested the citation and penalty with the Review Commission, which has increased significantly the number of contests filed with the Commission.

MSHA’s change in its conferencing procedures occurred at a time when the number of citations and orders being written increased dramatically. In 2006 and 2007, MSHA issued 62,896 and 58,708 citations and orders, respectively, in the metal/non-metal sector.1 In 2008, MSHA issued 68,050 in the metal/non-metal sector. The 2008 total represents a 14-percent increase in the total number of enforcement actions being written. MSHA continued a pattern of increased enforcement, issuing 69,290 citations and orders in 2009 and 75,928 citations and orders in 2010. In addition, MSHA increased the total amount of penalty dollars assessed from $10,899,345 in 2006 to $45,938,656 in 2010 in the metal/non-metal sector. This resulted in an increase of 76 percent in proposed penalties in only four years. With this significant increase in enforcement actions and proposed penalties, it is not surprising that the number of contested proposed civil penalties similarly increased, especially given the fact that pre-assessment conferencing rights were taken away in 2009.

Early conferencing rights offers mine operators an opportunity to discuss violations cited by MSHA inspectors while traveling with inspectors, during close out conferences, and with district management at requested safety and health conferences. Prior to MSHA reinstating pre-assessment conferencing rights, MSHA conducted a pilot program in certain districts that gave operators the ability to request and hold safety and health conferences before the penalties were assessed by MSHA. The stated goal of the program was “to create a process that provides early resolution of concerns to prevent the need to contest citations and orders; and, to increase accuracy and consistency in citation and order writing by creating a feedback loop so that all parties could learn from the process.” PEIR Report Summary.

MSHA’s office of Program and Evaluation and Information Resources (PEIR) conducted an evaluation of MSHA’s pre-assessment safety and health conferencing pilot program. In its report, PEIR compared the pilot program results with the same time period in 2005 and 2009 for the same districts. PEIR found that pre-assessment conferences resulted in a reduction of up to 35 percent of contested citations in 2005, which pre-dated the MINER Act of 2006. The MINER Act had been fully implemented by 2009, resulting in higher penalty assessments. In the period from Aug. 31 to Nov. 30, 2009, post-assessment conferences resulted in a reduction of only 3 percent of contested citations. The 2010 pilot program reduced the number of contested citations by 17 percent.

As part of the pilot program, MSHA sought input from coal and metal/non-metal industry associations, mine operators, and union representatives. Feedback from the mining community was positive, and operators welcomed the opportunity for more effective close-out and pre-assessment conferences. Both the operators and MSHA’s district managers in the pilot districts considered the conferences beneficial for improving communication between MSHA and the mine operators. MSHA’s district managers also believed the process helped ensure that the rationale and documentation behind each violation was thoroughly reviewed and supported by the evidence. Both internal and external stakeholders generally expressed support for the program and thought that it should be expanded across MSHA.

According to MSHA, each MSHA district will determine when to implement the conferencing procedures, a decision that will be based on available resources. MSHA further notes that, in some districts, implementation may not occur “until other backlog reduction strategies take hold and make the caseloads more manageable.”

To the extent your MSHA district permits operators to request and hold pre-assessment safety and health conferences, operators should be prepared to timely request a conference and develop any arguments to present during the conference. The request must be made in writing and within 10 days of receipt of the citation. 30 C.F.R. § 100.6. The purpose of requesting a conference would be to give the operator a chance to present any evidence which may reduce the level of negligence or gravity assessed on the violation, or show that the citation is without merit and should be vacated.

MSHA’s change in its conferencing procedures occurred at a time when the number of citations and orders being written increased dramatically. In 2006 and 2007, MSHA issued 62,896 and 58,708 citations and orders, respectively, in the metal/non-metal sector. In 2008, MSHA issued 68,050 in the metal/non-metal sector. This represents a 14-percent increase.

Prior to the conference, an operator should consider who will participate in the conference and what documents may be needed. An operator should decide what defenses exist to the citation regarding the underlying violation, negligence, or gravity of the enforcement action. It may be helpful to prepare an outline of relevant points and facts that support each challenge. Where applicable, an operator may want to include relevant court decisions, interpretive guidelines, agency directives, or correspondence as part of its defense argument. An operator will want to be prepared to answer tough questions, correct any factual misunderstandings, and ask for explanations when an issue is unclear. It is important to always be truthful and stay focused on the issues at hand.

In concluding the conference, an operator will want to recap any agreements made with regard to modification or vacation. If an appropriate resolution is not reached, an operator then must decide if a contest of the penalty and citation is warranted. Overall, an operator should attempt to limit the conference to the issues it seeks to resolve and maintain a professional dialogue with the agency. AM

MSHA’s Assessment Office is the source of all enforcement action totals.

Kristin R. White is a member of Jackson Kelly PLLC’s Denver office, practicing in the Occupational Safety and Health Practice Group. She can be reached at 303-390-0006 or kwhite@jacksonkelly.com.